the slave

sion of B.,

chase mo

ney was

by him to

clined ta

instructed,

that they might from these facts

infer a sub

ces vested the title in the plaintiff, so as to prevent the defendant terwards, from taking any thing under a subsequent sale to him by Johnson. being in The negro had been in possession of the plaintiff before the sale the possesby the sheriff, and directly after it returned to her house. A wit- the purness, introduced by the plaintiff, deposed, that before the sale Johnson agreed to purchase the negro for the plaintiff; that after that tendered took place, the plaintiff offered to pay Johnson the price at which A, who dehe had bought the slave, which he then declined receiving, request- king it, but ing her to keep it; that at the time this offer was made, the plain- did not distiff had the money in her possession, but it was not produced in title: held, that the juconsequence of Johnson's wish that the plaintiff should retain it. ry were Upon this point, the evidence was contradictory, and thereupon the properly counsel for the defendant moved the presiding judge to instruct the jury, that if Johnson purchased the slave at the request, and for the use of the plaintiff, as the slave was bid off and returned by the sheriff as purchased by him, the legal title vested in him, subject sale. only to a trust for the plaintiff, and that the matters deposed to by the plaintiff's witness were not sufficient to vest that legal title in the plaintiff; and further, that the legal title being in Johnson, could not be passed to the plaintiff without a written transfer, or a sale accompanied with a delivery. But his honor refused to give these instructions, and charged the jury, that if they believed that Johnson purchased the slave at the request of, and as the agent of the plaintiff; and delivered the negro to her as her property; that the price bid by Johnson was tendered to him at the time of the delivery, and was not paid because of his request; or, if he was satisfied with the plaintiff's promise to pay him the amount, they were at liberty to find, that there was a valid sale by Johnson to the plaintiff. A verdict was returned for the plaintiff, and the defendant appealed.

Per Cur. Ruffin, J. I suppose the first instruction prayed on behalf of the defendant to be correct, as far as respects the vesting of the legal title in Johnson, by the purchase in his own name, and his becoming responsible to the sheriff for the price, notwithstanding the previous agency undertaken by him. If he chose to violate his engagement, and to take the title to himself, he might do so. But if he did, that did not prevent a subsequent sale to the plaintiff, and that brings the question to the last part of that instruction, and to the next, as asked for: which is, that the evidence did

sequent

In detinue

for a slave,

a tender of the alter

will not

not establish a sale from Johnson, or that the legal title passed from
him in any way.
The court is of opinion that the jury might find
that it did. The possession of the slave was transferred to the
plaintiff, who offered to pay an ascertained price, which Johnson
agreed to accept. It is true, the witness says, this was in refer-
ence to the previous agreement of Johnson to buy the negro for
the plaintiff; and, therefore, there was then no proposition about
the price. But although the plaintiff claimed upon the score of
the agency, because she did not know that the purchase had been
made in Johnson's own name; yet, when Johnson acquiesced in it,
and made the plaintiff believe that she had thus the title in one
way, when, in fact, she was getting it in another, the plaintiff's mis-
take, as to the mode in which it passed, shall not prevent her from
acquiring it in any mode, if the acts then done, in their legal ope-
ration, passed the title of themselves.

Did the plaintiff and Johnson then consider that the right to the
slave was in the former, by virtue of what was before and then
done? Was every thing done, that was expected or intended to
be done, to vest the title in the plaintiff? and was this followed or
accompanied by actual delivery? If so it is a sale. It is an agree-
ment that the property is, or shall be another's, and that agree-
ment consummated by delivery. Suppose Mrs. Eppes had then
paid the price, would any body doubt the character of the transac-
tion? Her agreement to pay is the same thing, if taken by the
seller in place of the money; and such the witness said was the
fact. Upon the conflicting testimony, it was for the jury to deter-
mine. Taking that offered by the plaintiff to be true, there was a
contract of sale, which accompanied by possession, is an executed
contract, and valid.
Choat v. Wright, 2 Dev. Rep. 289.

9.

KEITH V. JOHNSON et al. Fall T. 1833. 1 Dana's Rep. 604.

Held by the court, that the plaintiff in a judgment in detinue nate value may have an execution issued for the specific slave or thing recovered, and a tender of the alternate value will not discharge the discharge the judg- judgment, unless the plaintiff elects to take it, or the court is satisthede. fied, that without the defendant's fault it is beyond his powerfendant is the officer must take the posse comitatus, if necessary, and seize deliver the the slave or thing recovered, and for that purpose he may make specific

ment, un

unable to

slave.

forcible entry into the defendant's dwelling house, if he finds it closed, and has good reason to believe the slave or thing is there.

10.

KENT V. ARMISTEAD. Oct. T. 1813. 4 Munf. Rep. 72.

The court held, that a declaration in detinue for a slave is insuf- The ownficient to support the action, if it omit to state that the slave be- ership of longed to the plaintiff.

the slave must be

stated.

11.

HOLLADAY AND WIFE V. LITTLEPAGE. March T. 1811. 2

name.

Munf. Rep. 539.; ROYAL V. EPPES, 2 Munf. Rep. p. 479. Detinue for a negro woman slave Amy, and her issue, of the And the value of $1000, and Rachel, a negro woman slave and her issue, of the value of $1000. Plea non detinet. Motion in arrest of judgment, on the ground that the declaration was vague and uncertain, in demanding the issue of two negro women therein mentioned. The district court arrested the judgment, and the plaintiff appealed to this court.

The president observed, that the court were of opinion, that the omission to state the names of the issue of the female slaves in the declaration mentioned, being, at most, only a fact imperfectly stated, and that the judgment of the district court ought to be reversed. The defect is cured by the verdict, which finds the names of the issue of the female slaves in the declaration mentioned.

12.

MUNSEL, ADM'R OF SNEED V. BARTLETT. April T. 1831. 6 J. J. Marshall's Rep. 20.; S. P. WOODWARD'S HEIRS V. THERLKELD, 1 Marsh. Rep. 10.; THOMAS V. WHITE et al, 3 Litt. 177.; SNEED V. EWING AND WIFE, 5 J. J. Marshall's Rep. 482.

An heir cannot

Per Cur. Buckner, J. The law is certainly fully established maintain an action that an heir cannot maintain an action in his own name for the re- in his own name for covery of slaves belonging to the estate of his ancestor, without the recove having previously obtained the assent of the administrator. They ry of slaves are assets in the hands of the administrator; and for the payment of the debts of the intestate, he may sell them, if it be necessary.

without the

assent of

atrator.

the admin

But the devisee may

13.

GRIMES V. GRIMES. Spring T. 1812. 2 Bibb's Rep. 594.

Held by the court, Boyle, Ch. J., that a devisee of slaves may without the maintain detinue without the assent of the executor; they being con

No demand other than the

Cox v. EX'RS OF ROBINSON. Fall T. 1809. 1 Bibb's Rep. 604.

Held by the court, Bibb, Ch. J., that no demand other than the writ is necessary to maintain the action of detinue. Property in writ is ne- the plaintiff, and possession in the defendant anterior to the suit, are material grounds of this action. Burnley v. Lambert, 1 Wash. for slaves. Rep. 308.; Crozier v. Gano and wife, 1 Bibb's Rep. 257.

cessary to maintain

an action

Executors

and administrators

15.

Cox v. EXECUTORS OF ROBINSON. Fall. T. 1809. 1 Bibb's Rep. 604.; STAMPS v. BEATTY, Hard. Rep. 337.

Per Bibb, Ch. J. Slaves pass to executors and administrators, may main- and they may maintain an action of detinue for them.

tain an ac.. tion for

slaves.

A slave may be

guilty of

stealing a slave altho'

no force be used.

(XXII.) OF STEALING AND KIDNAPPING SLAVES.

1.

STATE V. WHYTE AND SADLER. Nov. T. 1819. 2 Nott &
McCord's Rep. 174.

Prohibition to restrain the defendants, as magistrates, who had convicted a negro man named Billy, for stealing a negro woman named Hannah. The prohibition was moved for, on the ground that stealing a slave by a slave cannot be consummated unless force is employed by the slave charged with the felony, there being no proof of force in this case.

Per Cur. Colcock, J. The act of 1790 expressly declares, that "if any slave shall feloniously steal, take, or carry away, any slave being the property of another, with an intent to carry such slave out of this province, he shall suffer death as a felon." This is one of the charges in the indictment. And as to the objection, that force is necessary to constitute the offence, I think it wholly

untenable. If there never had been any other law upon the subject, I should have said, that to entice a slave to leave his master was a taking and carrying away within the meaning of the act. With inanimate objects of larceny, force may be necessary, and must be used; but is there any thing in reason or common sense, which requires it as to those subjects of larceny which possess volition and locomotion? Is not the idea as to both, the deprivation which the owner of the property sustains? Suppose a horse or a dog to be tolled out of the possession of the owner by corn, is not this a taking and carrying away as the shouldering a bale of goods would be? I confess I can see no substantial legal difference.

2.

THE STATE V. COVINGTON. Jan. T. 1832. 2 Bailey's
Rep. 569.

The conowner of a

sent of the

slave to the slave's

acceding to a proposal to be carri

The prisoner was indicted under the statute of 1754, which declares, that any one "who shall inveigle, steal, or carry away, any negro or other slave or slaves, &c., so as the owner or employer of such slave or slaves shall be deprived of the use and benefit of such slave," &c. The owner knew of the contemplated felony, and consented that the negro should meet the prisoner for the purpose a view of of arranging with him the plan of elopement. And the question detecting was, whether the owner was "deprived of the use and benefit of er in the the slave."

The court, Johnson, J. after referring to Macdaniel's case, 2 East's P. C., 665.; Norden's case, 2 East's P. C., 666.; and Eggington's case, 2 East's P. C., 666.; which last case was held to be a case in point. There the master of a manufactory had agreed with his servant that the door should be left open for the entrance of the robber; and when he entered, and took the marked guineas, the servant was with him, and the court held that it was a larceny. The principle will apply to this case. Every act of the prisoner proceeded from his own mere motion, without any agency on the part of the owner of the slave. His not preventing the thing when he knew it beforehand, is not evidence of the assent of his will, but is only an apparent assent. The act was, therefore, invis to domino, and constituted felony.

ed off, with

the offend

act of stealing the slave, is

not such an assent as empt the from the penalty of

will ex

offender

slave steal

ing.